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Patna High Court

Md. JubairversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The court held that the codeine concentration is below the statutory threshold, the NDPS Act does not apply, and therefore bail was granted.

Summary

The petitioner, Md. Jubair, was arrested for alleged possession of 33 bottles of Maxitox Premium cough syrup containing 0.2% codeine and was charged under Sections 20 and 22 of the NDPS Act and Section 30(a) of the Bihar Excise and Prohibition Act. He contended that the seizure list was not complied with, that the codeine concentration was below the 2.5% threshold prescribed in Notification S.O. 826(E), and therefore the syrup should not be treated as contraband under the NDPS Act but rather under the Drugs and Cosmetic Act. The State relied on the Supreme Court’s decision in Hira Singh v. Union of India, arguing that any non‑toxic material mixed with a contraband makes the whole quantity a contraband and that the seized amount amounted to a commercial quantity. The Court examined Section 2(d) of the NDPS Act and the central government notification, concluding that the syrup did not fall within the definition of a narcotic drug and that the NDPS Act was inapplicable. Consequently, the Court granted regular bail on a bond of Rs 10,000 with two sureties.

Issues considered

  • Whether cough syrup containing 0.2% codeine falls within the definition of a narcotic drug under the NDPS Act.
  • Whether the quantity seized constitutes a ‘commercial quantity’ under the NDPS Act.
  • Whether the procedural requirements of Section 105 of the NDPS Act were complied with in the seizure.
  • Whether the case should be tried under the Drugs and Cosmetic Act instead of the NDPS Act.

Legislation cited

Subjects

  • bail
  • NDPS Act
  • codeine
  • contraband
  • commercial quantity
  • seizure procedure
  • notification S.O. 826(E)
  • Drugs and Cosmetic Act
  • concentration threshold

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.33135 of 2026
                     Arising Out of PS. Case No.-10 Year-2026 Thana- SHAHKUND District- Bhagalpur
                 ======================================================
                 Md. Jubair, Son of Hakman, Resident of Village- Douna, P.S.- Amarpur,
                 District- Banka
                                                                         ... ... Petitioner/s
                                               Versus
                 The State of Bihar
                                                                  ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :       Mr. Swapnil Kumar Singh, Advocate
                 For the Opposite Party/s :       Mr. Satyendra Prasad, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                                       ORAL ORDER

2   21-05-2026                  Heard the learned counsel for the petitioner and

                   learned APP for the State through Video Conferencing.

                                2. The petitioner has prayed for regular bail in a case

                   registered for the offence punishable under Sections 20, 22 of

                   N.D.P.S Act and Section 30(a) of Bihar Excise and Prohibition

                   Act.

                                3. The case of the prosecution in brief is that, from

                   possession of this petitioner, altogether 33 bottles each of 100

                   ml Maxitox Premium cough syrup containing Codeine were

                   recovered.

                                4. Learned counsel for the petitioner has submitted

                   that, nothing has been recovered from the possession of this

                   petitioner. It is also submitted that all the witnesses to the

                   seizure list are police personnel, and the police have not

                   complied the mandatory provisions of Section 105 of the
Patna High Court CR. MISC. No.33135 of 2026(2) dt.21-05-2026
                                            2/4




          B.N.S.S. while making the Seizure List. Learned counsel for the

          petitioner also submits that the petitioner is innocent and he has

          falsely been implicated in this case. It has further been

          submitted by the learned counsel for the petitioner that

          petitioner is having three criminal antecedents and that are not

          of similar nature. He is in custody since 14.01.2026.

                       5. Learned counsel for the petitioner has further

          submitted that under Notification No. S.O. 826(E) dated

          14.11.1985 under the Narcotic Drugs and Psychotropic

          Substances Act and Rules, 1985 that preparations are exempted

          as manufactured drugs provided the preparations contained the

          narcotic drugs to the extent permitted in respect of codeine

          under Entry No. 35. It is stated that codeine and ethyle

          morphine and their salts including dionine all dilutions and

          preparations are considered to be manufactured drugs except

          those which are compounded with one or more other ingredients

          and containing not more than 100 miligrams of the drugs per

          doses unit and with a concentration of not more than 2.5 % in

          undivided preparations and which have been established in

          therapeutic practice.

                       6. In this case, Codeine Cough syrup containing

          codeine phosphate has been recovered from the motorcycle and
Patna High Court CR. MISC. No.33135 of 2026(2) dt.21-05-2026
                                            3/4




          the concentration of the codeine in this drug is approximately

          0.2% which is less than 2.5% as provided in the above

          notification.

                       7. Learned APP appearing for the State has vehemently

          the application for bail and has submitted that in the case of Hira

          Singh and Anr. V. Union of India and Anr., the Hon’ble

          Supreme Court has held that entire non-toxic material which is

          mixed with the contraband will be considered as the contraband

          and as such, the quantity which has been recovered from the

          possession of the petitioner is commercial quantity.

                       8. In this regard, it is worth mentioning that in view of

          Section 2(d) of the N.D.P.S. Act, the drug itself is not narcotic

          drug then there is no jurisdictional basis for the case and the

          Court would not have a reason to go into the question of

          quantities. The Central Government has power to issue

          notification time to time.

                       9. Having heard learned counsel for the parties and

          considering the facts and circumstances of the case, this Court is

          inclined to enlarge the petitioner on bail. The above named

          petitioner is directed to be enlarged on bail on furnishing bail

          bond of Rs. 10,000/- (Rs. ten thousand only) with two sureties

          of the like amount each to the satisfaction of the learned CJM,

          Bhagalpur/concerned Court, in connection with Shahkund P.S.
           Patna High Court CR. MISC. No.33135 of 2026(2) dt.21-05-2026
                                                       4/4




                     Case No. 10 of 2026.

                                  10. Before parting, it is very strange that the cases

                     where cough syrups containing codeine are recovered, the

                     police is invariably filing cases under N.D.P.S. Act whereas in

                     view of the notification of Central Government (supra)

                     concentration of codeine being less than 2.5 %, the quantity

                     does not come under the ambit of contraband. Cough syrup

                     containing codeine is only a Schedule-H drug for which, the

                     shopkeeper has to maintain register and he must be a licensed

                     one. Such type of cases should be filed under Drugs and

                     Cosmetic Act. It is only the violation of Drugs and Cosmetic Act

                     whereas, police is invariably misusing the procedure.



                                           (Ashok Kumar Pandey, J)
khushbu/Ritwika

U      T


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